[Code of Federal Regulations]
[Title 8, Volume 1]
[Revised as of January 1, 2007]
From the U.S. Government Printing Office via GPO Access
[CITE: 8CFR245a.1]

[Page 554-558]
 
                     TITLE 8--ALIENS AND NATIONALITY
 
               CHAPTER I--DEPARTMENT OF HOMELAND SECURITY
 
     PART 245a_ADJUSTMENT OF STATUS TO THAT OF PERSONS ADMITTED FOR 
 
Subpart A_Immigration Reform and Control Act of 1986 (IRCA) Legalization 
                               Provisions
 
Sec.  245a.1  Definitions.


    As used in this chapter:
    (a) Act means the Immigration and Nationality Act, as amended by The 
Immigration Reform and Control Act of 1986.
    (b) Service means the Immigration and Naturalization Service (INS).
    (c)(1) Resided continuously as used in section 245A(a)(2) of the 
Act, means that the alien shall be regarded as having resided 
continuously in the United States if, at the time of filing of the 
application for temporary resident status:

An alien who after appearing for a scheduled interview to obtain an 
immigrant visa at a Consulate or Embassy in Canada or Mexico but who 
subsequently is not issued an immigrant visa and who is paroled back 
into the United States, pursuant to the stateside criteria program, 
shall be regarded as having been granted advance parole by the Service.
    (i) No single absence from the United States has exceeded forty-five 
(45) days, and the aggregate of all absences has not exceeded one 
hundred and eighty (180) days between January 1, 1982 through the date 
the application for temporary resident status is filed, unless the alien 
can establish that due to emergent reasons, his or her return to the 
United States could not be accomplished within the time period allowed;
    (ii) The alien was maintaining residence in the United States; and
    (iii) The alien's departure from the United States was not based on 
an order of deportation.

An alien who has been absent from the United States in accordance with 
the Service's advance parole procedures shall not be considered as 
having interrupted his or her continuous residence

[[Page 555]]

as required at the time of filing an application.
    (2) Continuous residence, as used in section 245A(b)(1)(B) of the 
Act, means that the alien shall be regarded as having resided 
continuously in the United States if, at the time of applying for 
adjustment from temporary residence to permanent resident status: No 
single absence from the United States has exceeded thirty (30) days, and 
the aggregate of all absences has not exceeded ninety (90) days between 
the date of granting of lawful temporary resident status and of applying 
for permanent resident status, unless the alien can establish that due 
to emergent reasons the return to the United States could not be 
accomplished within the time period(s) allowed.
    (d) In the term alien's unlawful status was known to the government, 
the term government means the Immigration and Naturalization Service. An 
alien's unlawful status was known to the government only if:
    (1) The Service received factual information constituting a 
violation of the alien's nonimmigrant status from any agency, bureau or 
department, or subdivision thereof, of the Federal government, and such 
information was stored or otherwise recorded in the official Service 
alien file, whether or not the Service took follow-up action on the 
information received. In order to meet the standard of information 
constituting a violation of the alien's nonimmigrant status, the alien 
must have made a clear statement or declaration to the other federal 
agency, bureau or department that he or she was in violation of 
nonimmigrant status; or
    (2) An affirmative determination was made by the Service prior to 
January 1, 1982 that the alien was subject to deportation proceedings. 
Evidence that may be presented by an alien to support an assertion that 
such a determination was made may include, but is not limited to, 
official Service documents issued prior to January 1, 1982, i.e., Forms 
I-94, Arrival-Departure Records granting a period of time in which to 
depart the United States without imposition of proceedings; Forms I-210, 
Voluntary Departure Notice letter; and Forms I-221, Order to Show Cause 
and Notice of Hearing. Evidence from Service records that may be used to 
support a finding that such a determination was made may include, but is 
not limited to, record copies of the aforementioned forms and other 
documents contained in alien files, i.e., Forms I-213, Record of 
Deportable Alien;
    Unexecuted Forms I-205, Warrant of Deportation; Forms I-265, 
Application for Order to Show Cause and Processing Sheet; Forms I-541, 
Order of Denial of Application for Extension of Stay granting a period 
of time in which to depart the United States without imposition of 
proceedings, or any other Service record reflecting that the alien's 
nonimmigrant status was considered by the Service to have terminated or 
the alien was otherwise determined to be subject to deportation 
proceedings prior to January 1, 1982, whether or not deportation 
proceedings were instituted; or
    (3) A copy of a response by the Service to any other agency which 
advised that agency that a particular alien had no legal status in the 
United States or for whom no record could be found.
    (4) The applicant produces documentation from a school approved to 
enroll foreign students under Sec.  214.3 which establishes that the 
said school forwarded to the Service a report that clearly indicated the 
applicant had violated his or her nonimmigrant student status prior to 
January 1, 1982. A school may submit an affirmation that the school did 
forward to the Service the aforementioned report and that the school no 
longer has available copies of the actual documentation sent. In order 
to be eligible under this part, the applicant must not have been 
reinstated to nonimmigrant student status.
    (e) The term to make a determination as used in Sec.  245a.2(t)(3) 
of this part means obtaining and reviewing all information required to 
adjudicate an application for the benefit sought and making a decision 
thereon. If fraud, willful misrepresentation or concealment of a 
material fact, knowingly providing a false writing or document, 
knowingly making a false statement or representation, or any other 
activity prohibited by section 245A(c)(6) of the Act is established 
during the process of

[[Page 556]]

making the determination on the application, the Service shall refer to 
the United States Attorney for prosecution of the alien or of any person 
who created or supplied a false writing or document for use in an 
application for adjustment of status under this part.
    (f) The term continuous physical presence as used in section 
245A(a)(3)(A) of the Act means actual continuous presence in the United 
States since November 6, 1986 until filing of any application for 
adjustment of status. Aliens who were outside of the United States on 
the date of enactment or departed the United States after enactment may 
apply for legalization if they reentered prior to May 1, 1987, provided 
they meet the continuous residence requirements, and are otherwise 
eligible for legalization.
    (g) Brief, casual, and innocent means a departure authorized by the 
Service (advance parole) subsequent to May 1, 1987 of not more than 
thirty (30) days for legitimate emergency or humanitarian purposes 
unless a further period of authorized departure has been granted in the 
discretion of the district director or a departure was beyond the 
alien's control.
    (h) The term brief and casual absences as used in section 
245a(b)(3)(A) of the Act permits temporary trips abroad as long as the 
alien establishes a continuing intention to adjust to lawful permanent 
resident status. However, such absences must comply with Sec.  
245a.3(b)(2) of this chapter in order for the alien to maintain 
continuous residence as specified in the Act.
    (i) Public cash assistance means income or needs-based monetary 
assistance to include, but not limited to, supplemental security income 
received by the alien through federal, state, or local programs designed 
to meet subsistence levels. It does not include assistance in kind, such 
as food stamps, public housing, or other non-cash benefits, nor does it 
include work-related compensation or certain types of medical assistance 
(Medicare, Medicaid, emergency treatment, services to pregnant women or 
children under 18 years of age, or treatment in the interest of public 
health).
    (j) Legalization Office means local offices of the Immigration and 
Naturalization Service which accept and process applications for 
Legalization or Special Agricultural Worker status, under the authority 
of the INS district directors in whose districts such offices are 
located.
    (k) Regional Processing Facility means Service offices established 
in each of the four Service regions to adjudicate, under the authority 
of the INS Directors of the Regional Processing Facilities, applications 
for adjustment of status under section 210, 245A(a) or 245A(b)(1) of the 
Act.
    (l) Designated entity means any state, local, church, community, 
farm labor organization, voluntary organization, association of 
agricultural employers or individual determined by the Service to be 
qualified to assist aliens in the preparation of applications for 
Legalization status.
    (m) The term family unity as used in section 245(d)(2)(B)(i) of the 
Act means maintaining the family group without deviation or change. The 
family group shall include the spouse, unmarried minor children under 18 
years of age who are not members of some other household, and parents 
who reside regularly in the household of the family group.
    (n) The term prima facie as used in section 245(e)(1) and (2) of the 
Act means eligibility is established if the applicant presents a 
completed I-687 and specific factual information which in the absence of 
rebuttal will establish a claim of eligibility under this part.
    (o) Misdemeanor means a crime committed in the United States, either 
(1) punishable by imprisonment for a term of one year or less, 
regardless of the term such alien actually served, if any, or (2) a 
crime treated as a misdemeanor under 8 CFR 245a.1(p). For purposes of 
this definition, any crime punishable by imprisonment for a maximum term 
of five days or less shall not be considered a misdemeanor.
    (p) Felony means a crime committed in the United States, punishable 
by imprisonment for a term of more than one year, regardless of the term 
such alien actually served, if any, except: When the offense is defined 
by the State as a misdemeanor and the sentence actually imposed is one 
year or less regardless of the term such alien

[[Page 557]]

actually served. Under this exception, for purposes of 8 CFR part 245a, 
the crime shall be treated as a misdemeanor.
    (q) Subject of an Order to Show Cause means actual service of the 
Order to Show Cause upon the alien through the mail or by personal 
service.
    (r) A qualified designated entity in good-standing with the Service 
means those designated entities whose cooperative agreements were not 
suspended or terminated by the Service or those whose agreements were 
not allowed to lapse by the Service prior to January 30, 1989 (the 
expiration date of the INS cooperative agreements for all designated 
entities), or those whose agreements were not terminated for cause by 
the Service subsequent to January 30, 1989.
    Subsequent to January 30, 1989, and throughout the period ending on 
November 6, 1990, a QDE in good-standing may: (1) Serve as an authorized 
course provider under Sec.  245a.3(b)(5)(i)(C) of this chapter; (2) 
Administer the IRCA Test for Permanent Residency (proficiency test), 
provided an agreement has been entered into with and authorization has 
been given by INS under Sec.  245a.1(s)(5) of this chapter; and, (3) 
Certify as true and complete copies of original documents submitted in 
support of Form I-698 in the format prescribed in Sec.  245a.3(d)(2) of 
this chapter.
    (s) Satisfactorily pursuing, as used in section 245A(b)(1)(D)(i)(II) 
of the Act, means:
    (1) An applicant for permanent resident status has attended a 
recognized program for at least 40 hours of a minimum 60-hour course as 
appropriate for his or her ability level, and is demonstrating progress 
according to the performance standards of the English/citizenship course 
prescribed by the recognized program in which he or she is enrolled (as 
long as enrollment occurred on or after May 1, 1987, course standards 
include attainment of particular functional skills related to 
communicative ability, subject matter knowledge, and English language 
competency, and attainment of these skills is measured either by 
successful completion of learning objectives appropriate to the 
applicant's ability level, or attainment of a determined score on a test 
or tests, or both of these); or
    (2) An applicant presents a high school diploma or general 
educational development diploma (GED) from a school in the United 
States. A GED gained in a language other than English is acceptable only 
if a GED English proficiency test has been passed. (The curriculum for 
both the high school diploma and the GED must have included at least 40 
hours of instruction in English and U.S. history and government); or
    (3) An applicant has attended for a period of one academic year (or 
the equivalent thereof according to the standards of the learning 
institution), a state recognized, accredited learning institution in the 
United States and that institution certifies such attendance (as long as 
the curriculum included at least 40 hours of instruction in English and 
U.S. history and government); or
    (4) An applicant has attended courses conducted by employers, 
social, community, or private groups certified (retroactively, if 
necessary, as long as enrollment occurred on or after May 1, 1987, and 
the curriculum included at least 40 hours of instruction in English and 
U.S. history and government) by the district director or the Director of 
the Outreach Program under Sec.  245a.3(b)(5)(i)(D) of this chapter; or
    (5) An applicant attests to having completed at least 40 hours of 
individual study in English and U.S. history and government and passes 
the proficiency test for legalization, called the IRCA Test for 
Permanent Residency, indicating that the applicant is able to read and 
understand minimal functional English within the context of the history 
and government of the United States. Such test may be given by INS, as 
well as, State Departments of Education (SDEs) (and their accredited 
educational agencies) and Qualified Designated Entities in good-standing 
(QDEs) upon agreement with and authorization by INS. Those SDEs and QDEs 
wishing to participate in this effort should write to the Director of 
the INS Outreach Program at 425 ``I'' Street, NW., Washington, DC 20536, 
for further information.

[[Page 558]]

    (t) Minimal understanding of ordinary English as used in section 
245A(b)(1)(D)(i) of the Act means an applicant can satisfy basic 
survival needs and routine social demands. The person can handle jobs 
that involve following simple oral and very basic written communication.
    (u) Curriculum means a defined course for an instructional program. 
Minimally, the curriculum prescribes what is to be taught, how the 
course is to be taught, with what materials, and when and where. The 
curriculum must:
    (1) Teach words and phrases in ordinary, everyday usage;
    (2) Include the content of the Federal Citizenship Text series as 
the basis for curriculum development (other texts with similar content 
may be used in addition to, but not in lieu of, the Federal Citizenship 
Text series);
    (3) Be designed to provide at least 60 hours of instruction per 
class level;
    (4) Be relevant and educationally appropriate for the program focus 
and the intended audience; and
    (5) Be available for examination and review by INS as requested.
    (v) The term developmentally disabled means the same as the term 
developmental disability defined in section 102(5) of the Developmental 
Disabilities Assistance and Bill of Rights Act of 1987, Public Law 100-
146. As a convenience to the public, that definition is printed here in 
its entirety:

    The term developmental disability means a severe, chronic disability 
of a person which:
    (1) Is attributable to a mental or physical impairment or 
combination of mental and physical impairments;
    (2) Is manifested before the person attains age twenty-two;
    (3) Is likely to continue indefinitely;
    (4) Results in substantial functional limitations in three or more 
of the following areas of major life activity: (i) Self-care, (ii) 
receptive and expressive language, (iii) learning, (iv) mobility, (v) 
self direction, (vi) capacity for independent living, and (vii) economic 
self-sufficiency; and
    (5) Reflects the person's need for a combination and sequence of 
special, interdisciplinary, or generic care, treatment, or other 
services which are of lifelong or extended duration and are individually 
planned and coordinated.

[52 FR 16208, May 1, 1987, as amended at 52 FR 43845, Nov. 17, 1987; 53 
FR 9863, Mar. 28, 1988; 53 FR 23382, June 22, 1988; 53 FR 43992, Oct. 
31, 1988; 54 FR 29448, July 12, 1989; 56 FR 31061, July 9, 1991]